Marion J. King v. Weston Public Schools (SPR 20220509)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 8, 2022 SPR22/0509 Sheri Matthews Assist. Superintendent for Finance and Operations Weston Public Schools 89 Wellesley Street Weston, MA 02493 Dear Superintendent Matthews: I have received the petition of Marion King appealing the response of the Weston Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 16, 2022, Ms. King requested, “a copy of…Massachusetts Department of Elementary and Secondary Education Letter(s) of Finding for complaint PRS 5250 and 5522, redacted of any confidential information.” Previous Appeals The records sought have been the subject of previous appeals. See SPR22/0339 Supervisor of Records (February 16, 2022); SPR22/0218 Supervisor of Records Determination (February 3, 2022). In SPR22/0339, the School stated that it would provide a supplemental response indicating why it redacted portions of the records pursuant to Exemptions (a) and (c). The School provided this response on February 28, 2022. Unsatisfied with the substantive nature of the School’s response, Ms. King petitioned this office and this appeal, SPR22/0509, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Sheri Matthews SPR22/0509 Page 2 March 8, 2022 order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The School’s February 28th Supplemental Response On February 28, 2022, the School provided responsive records subject to redactions pursuant to Exemptions (a) and (c) of the Public Records Law. The School clarified its February 28th response on March 2, 2022. At the request of a staff attorney in the Public Records Division, the School clarified its March 2nd response in an email sent on March 8, 2022. In the March 8th response, the School again clarified that it was withholding records pursuant to 603 C.M.R. 23.00. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Sheri Matthews SPR22/0509 Page 3 March 8, 2022 603 C.M.R. 23.00 states in relevant part: 603 CMR 23.00 is promulgated by the Board of Education pursuant to its powers under M.G.L. c. 71, § 34D which directs that "the board of education shall adopt regulations relative to the maintenance of student records by the public elementary and secondary schools of the commonwealth," and under M.G.L. c. 71, § 34F which directs that "the board of education shall adopt regulations relative to the retention, duplication and storage of records under the control of school committees, and except as otherwise required by law may authorize the periodic destruction of any such records at reasonable times." … 603 CMR is in conformity with federal and state statutes regarding maintenance of and access to student records, and are to be construed harmoniously with such statutes. In its March 8, 2022 email, the School stated, “…much of the information that was redacted was part of the student’s IEP/evaluations and the privacy of those records are covered under the Students Records Law 603 C.M.R. 23.00.” Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Property Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017).

Sheri Matthews SPR22/0509 Page 4 March 8, 2022 The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In its March 2, 2022 response, the School stated: …the material redacted is also protected under Exemption (c) as it is information or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. We redacted student and parent names, birthdates and other personal information. The larger redactions cover specific information and direct quotes from the student’s IEP that identifies their disability, accommodations, services and data about the student’s progress and performance (including scores on assessments). The redacted portion also includes information from evaluations of the student. Because of the nature of the information, the small size of the cohort in the program at the school in Weston, and the very intimate details of personal nature regarding the student, we have appropriately redacted PRS 5522 Letter of Finding so that it can otherwise be produced. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (a) and Exemption (c) claims made by the School to redact responsive records, the School must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the School’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian

Sheri Matthews SPR22/0509 Page 5 March 8, 2022 of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies and municipalities with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the School is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Marion King